File this story under “News You Can Use”: what are the limitations on liability when you are playing fantastically, horrifically, bad golf?
The question struck a chord here in the Sports Group at Proskauer, as surely it will for many of you. Fortunately for the Empire State duffers among us (if not for our golf partners), the New York Court of Appeals recently affirmed a lower court ruling that a golfer has no duty to warn other players by yelling “fore!” before their errant shot strikes another golfer.
The incident giving rise to the case occurred in October 2002 on the Dix Hills Park Golf Course on Long Island. Dr. Azad Anand and Dr. Anoop Kapoor were golfing buddies and one morning in October their group had just hit their second shots on the first hole. Walking ahead, Anand found his ball resting in the fairway rough but was unaware that, farther back, his playing partner had already begun his third swing. As Anand turned back toward him, Kapoor unleashed a hosel rocket that sliced and careened toward Anand, striking him and causing a detached retina that left him blind in one eye. A neuroradiologist, Anand was unable to work after the injury.
Anand commenced a personal injury claim, asserting that Kapoor’s failure to warn of his errant shot amounted to negligence and proximately caused Anand’s injury. Kapoor said he called out a warning after hitting his shot, but both Anand and the third player in the group said they never heard any warning. Kapoor admitted that he did not know where the other golfers were when he hit the ball that injured Anand.
The case rested on two questions: first, did Anand, by playing golf, assume the risk of being hit by a struck ball, and second, was Anand within the foreseeable danger zone when he was struck and blinded. Assumption of risk is an affirmative defense in which the party-at-issue explicitly or implicitly consents in advance to take a chance of injury from a known risk. If proven, this defense eliminates any legal duty to the injured party. In the law of negligence, foreseeability is determined by the capacity of a “reasonable person” to know in advance or reasonably anticipate that damage or injury is likely to ensue from the person’s acts or omissions.
A witness in the case testified that Anand was about 20 feet away from Kapoor and at about a 50-degree angle, but Kapoor maintained that he was farther away and the angle was somewhere between 60 and 80 degrees. The trial court dismissed Anand’s claim, holding that he assumed the primary risk by golfing, and the New York Appellate Division agreed, concluding that Anand was not within the foreseeable danger zone. The single dissenting justice claimed that there remained a factual question under New York case law about whether Kapoor’s violation of the rules and customs of golf “unreasonably increased” Anand’s risk and caused the accident.
Anand’s lawyer argued to the Court of Appeals that the “foreseeable zone of danger” is a fact-specific issue: one’s zone of danger must be viewed differently, he said, when playing alongside an amateur as opposed to Tiger Woods, who has exceptional control over the ball. Placing the assumption of risk entirely on a golfer who chose to play, he argued, “relieves the striker of almost any responsibility whatsoever.”
However, in December, the Court of Appeals rejected Anand’s arguments and affirmed the lower court rulings in a summary memorandum. The Court of Appeals held that Anand had assumed the risk of injury by electing to play the game and stated that “the manner in which Anand was injured—being hit without warning by a ‘shanked’ shot while one searches for one’s own ball—reflects a commonly appreciated risk of golf.” Therefore, Kapoor’s failure to warn did not amount to intentional or reckless conduct that unreasonably increased the inherent risks.
Now, if only the New York State Legislature would officially sanction “winter rules“…